Re-Examine CCS Rule Denying Maternity Leave To Female Govt Servant Having More Than Two Children: Delhi High Court To Authorities

The Delhi High Court has said that it expects the government authorities to re-examine the sustainability of Rule 43 of the CCS(Leave) Rules which denies maternity leave to a female government servant if she has more than two surviving children.

“In order to achieve success in population control, the government may take any appropriate innovative steps in order to dissuade the citizens from giving birth to more than two children. But once third child comes into existence even in womb, her rights cannot be trampled over,” a division bench comprising Justice Suresh Kumar Kait and Justice Girish Kathpalia said.

Rule 43 of the CCS (Leave) Rules, 1972, entitles a female government servant to maternity leave for a period of 180 days if she has less than two surviving children.

The bench said that although the two-child policy aimed at population control is a laudable policy and the court does not advocate to incentivise more than two children, the steps to disincentivise more than three children must be addressed to the parent and not the children.

“What is the fault of the third and subsequent child? They did not have any control over their birth. That being so, it would be atrocious to expect the third and the subsequent child to be deprived of motherly touch immediately post natal and during infancy because Rule 43 expects the mother of that child to report for official duties the very next day of delivery. That third and subsequent child being completely helpless, therefore, it is the duty of the court to step in,” the court said.

The bench was dealing with a plea moved by the police authorities challenging an order passed by the Central Administrative Tribunal directing them to grant maternity leave to a lady constable with a third child.

The lady had two children from her first marriage which was dissolved. She had a third child from her second wedlock but her application for maternity leave was rejected.

Dismissing the appeal and upholding the impugned order, the court said that it expects that the government authorities would re-examine the sustainability of Rule 43 of the CCS(Leave) Rules.

“…it is not the question of incentivising the lady government servant with the third and the subsequent maternity leave; it is the question of protecting rights of the third and the subsequent child to mother's touch immediately post natal and during infancy period, which is most crucial for their overall development – physical as well as psychological,” the court said.

It added that prima facie, the classification of lady government servants on the basis of the number of surviving children they have lacks intelligible differentia.

“However, we must add a rider that our this view is only prima facie view, because vires of Rule 43 were not challenged before us, and only in order to arrive at just and fair decision, we have examined the logic, if any behind Rule 43 of CCS(Leave) Rules,” the court said.

The court further observed that it is not just motherhood but also childhood that requires special attention. It added that women must be treated with honour and dignity at places where they work to earn a livelihood.

The bench also said that whatever the nature of their job and the workplace, women must be provided all the facilities to which they are entitled.

“Identity of a women is often tangled within the patriarchal structure of a profit motivated enterprise which dare to see mothering or family responsibility remain subordinate to their interest. Complexity of working environment as above is designed by an architecture without adhering to rules of gender equity; often overwhelmingly to suit men,” the bench said.

Counsel for Appellant: Ms. Avnish Ahlawat, Standing Counsel (GNCTD) with Mr. N.K. Singh, Ms. Laavanya Kaushik, Ms. Aliza Alam and Mr. Mohnish Sehrawat, Advocates

Counsel for Respondents: Ms. Avshreya Pratap Singh Rudy, SPC with Ms. Usha Jamnal, Advocate

Title: COMMISSIONER OF POLICE AND ANR v. RAVINA YADAV AND ANR

Citation: 2024 LiveLaw (Del) 815

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